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Tuesday, April 9, 2013

Voices of the People: Rule of Law

UNPUBLISHED BY THE FIJI TIMES DUE TO LEGAL ISSUES.... (was supposed to run on 20th March, 2013 in my usual Off the Wall column)

This week’s Off the Wall continues to share a summary of
the book, “Voices of the People:
Perceptions and Preconditions for Democratic Development in Fiji”. In this
six-part series we seen the results of the research conducted by the Institute
for Research and Social Analysis of the Pacific Theological College into issues
of leadership, decision-making and democracy. In part 4, participants of the
research share their perception on the Rule of Law.

Participants and
interviewees alike spoke about being subject to various sets of rules and laws
in their day-to-day lives. In particular, there is recognition that two systems
hold great sway in Fiji: customary rules and state law. However, customary
rules are seen as being applicable mostly in the rural areas and villages
rather than the urban areas. Customary rules are also seen as mainly affecting
the iTaukei, and not Indo-Fijians. The majority of interviewees and
participants feel there is a conflict between the two sets of rules, and that
this is most acutely felt in relation to customary rules and human rights law
(although not all feel that this conflict is irreconcilable).

Other issues
giving rise to conflict include the tension between individual rights and group
rights, and between rights and duties, responsibilities and obligations. While state
law, including human rights law, is felt by most to be paramount, it was
broadly agreed that there needs to be research done to:

1)
identify
the various manifestations of customary rules in Fiji;

2)
decide
how customary rules and state law should relate to each other (that is, either
integrate customary rules into state law, or retain customary rules as a
separate set of rules, but ensure that they are consonant with Fiji’s
international human rights law obligations); and

3)
realize
that approach.

Opinions differed
as to whether traditional leaders are still able to enforce customary rules effectively
in their villages, or are losing their authority. To support the customary
system of enforcement, a majority of iTaukei participants and interviewees want
the Great Council of Chiefs (GCC) to be reinstated, albeit with some reforms.

There is some
concern about a possible lack of separation of powers in customary structures,
where traditional leaders often act as investigators, prosecutors and judges in
cases brought before them. If customary rules are to be taken seriously, then
the structures supporting and implementing these rules should be similarly
examined and strengthened.

Both participants
and interviewees feel that there have been so many changes in state law
(including the abrogation of the 1997 Constitution, the amendment of many
pieces of legislation, and the introduction of numerous decrees, not to mention
that a new constitution is currently being drafted and debated) that they are
uncertain as to what laws pertain to them. As a result, many called for a
concerted and wide-spread programme of education about law (in particular human
rights law) to be developed and implemented as soon as possible.

Participants feel
that Fiji should have a constitution, but generally did not specify whether
they preferred the 1997 Constitution, or a new constitution. The majority of
interviewees did not discuss this issue in any detail, but of those who did
discuss it, the vast majority want the 1997 Constitution to be re-instated (or
believe it has not been lawfully abrogated, and is therefore still in force).
However, they are not averse to the 1997 Constitution being amended if this
proves necessary, particularly those sections dealing with electoral matters.

In relation to
the enforcement of state law, the police force was heavily criticized by both
participants and interviewees; criticisms included: that the police were often
late in attending crime scenes, or didn’t turn up at all; that the proportion
of unresolved cases is very high; that the police are not properly trained and
are under-resourced; and that corruption is rife amongst police personnel.
There appears to be very little trust in the police, although some think that
the police force is better now than before 2006. Finally, interviewees raised
concerns about the militarization of the police in particular, and what they
viewed as the military usurping the role of the police. It is clear that there
needs to be a great deal of work done both to improve the performance of the
police, and the perception of that institution.

Participants
appear to have had very little personal experience with the Fijian court
system, but the common view is that delays in dealing with cases are common.
There is also a perception that the law does not apply equally to everyone, and
that those with status and/or money are above the law, or receive preferential
treatment from the courts. As for interviewees, a few think that the courts are
doing a good job under difficult circumstances, but most expressed serious
concerns, particularly in relation to the independence of the judiciary. It is
felt that the independence of the judiciary is not being respected by the
current government.

Closely connected
to judicial independence is the separation of powers, which many interviewees
feel is being undermined in the current set-up. In addition, it is felt that
there are insufficient local lawyers included in the magistracy and the
judiciary, and, that as a result, the courts lack a proper understanding of
local context and culture, which is seen as important to achieving justice in
any case before the court.

The role and
function of the military was a matter for debate amongst interviewees, given
its involvement (in one form or another) in all the coups that have taken place
in Fiji: a few want the military to be abolished, but most feel that this is
not feasible. As to the military’s role in protecting the state and the
constitution, there was broad agreement that there needs to be an informed and
in-depth debate on this issue, dealing particularly with such questions as on
what grounds, if ever, the military could consider removing an elected government.
The vast majority of interviewees want the military to return power to the
people as soon as possible; an exit strategy is seen as being critical to this
process, with most mooting some form of amnesty.

In relation to
returning power to the people, the vast majority of participants and
interviewees feel that installing a democratic system of government, along with
the promotion and protection of human rights is the best way forward for Fiji.
However, there was also the recognition that these are not going to be realized
overnight in Fiji, but will take time to develop, and – vitally – must be
tailored to Fiji’s specific circumstances.

Read more details of the findings of the research study
in “Voices of the People: Perceptions and Preconditions for Democratic
Development in Fiji,” which is available from the Pacific Theological College,
Suva.